Brussels, 18/05/2004 (Agence Europe) - The Competitiveness Council, chaired by Mary Harney, reached a political agreement by qualified majority on Tuesday on the directive which aims to create common rules to identify unfair practice on the part of companies to tackle them, ensure a high level of consumer protection and to increase consumer confidence in cross-border transactions within the internal market (see the first-reading opinion of the European Parliament in EUROPE of 27 April, p.17). The agreement was reached due to a Presidency compromise on the degree of harmonisation of national legislations, and the duration of exemptions. The text approved by the Ministers provides "maximum" harmonisation, rather than total as the Commission had hoped for. Once a consensus was found on keeping the notion of "average consumers" (as codified by the Court of Justice (Italy and Belgium hoped initially to refer simply to consumers), the Member States felt the clause on the application of the principles of mutual recognition and of the law of the country of origin (article 4.1) was superfluous, and it was therefore deleted from the text. This came against the view of the United Kingdom, Netherlands and Luxembourg, which were concerned that this might set a precedent for other legislation, such as the directive on services of general interest, for example. Furthermore, given that a revision of the text is planned four years after its entry into force, the Ministers agreed to extend the exemption period to six years (instead of five years as planned in the Commission's original text).
In as statement in the minutes of the session, the European Commission specified that it does not accept the deletion of article 4.1, unless the directive guarantees full harmonisation of the field covered. It states: "On this condition, article 4.1 is not necessary to guarantee the smooth functioning of the internal market in this field. The practical implementation of this directive will be very closely monitored by the Commission in order to ensure its uniform application".
David Byrne, the Commissioner for Consumer Protection, welcomed this agreement, which he feels is "of benefit to consumers, business and the European economy". He was particularly pleased that the Council did not drop the notion of average consumer. He believes that "it is essential clearly to codify in the directive what is already Community law, in light of several judgements returned by the Court of Justice in the fields of misleading advertising and intellectual property. This directive introduces harmonisation. We must therefore codify the notion of average consumer. It is the only way of guaranteeing that the same criteria will be applied, throughout the Union, by the Courts, and this raises the question of whether advertising, for example, is misleading or no. The directive will guide is in this exercise, whilst permitting the flexibility needed, depending on social, cultural or linguistic factors, in line with what the Court of Justice has established".